Director of Public Prosecutions v Trainor

[2016] VCC 28

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01643

DIRECTOR OF PUBLIC PROSECUTIONS

v

RENNY MICHAEL TRAINOR

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 January 2016
CASE MAY BE CITED AS:	DPP v Trainor
MEDIUM NEUTRAL CITATION:	[2016] VCC 28

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Bruhn
For the Accused	Mr F. Scully

HER HONOUR:

1Renny Michael Trainor, you have pleaded guilty before me to two charges, being intentionally cause injury. 

2The offending occurred on 17 April 2015, after you had been to an AFL match between Collingwood and St Kilda.  During that time, you and your friends drank alcohol, which had been smuggled in, during the game.  You left the match about three-quarter time and walked with three friends to the nearby Cricketers Arms Hotel in Punt Road.  Because of one friend's level of intoxication, you were denied entry by security staff.  You and your friends left after about one and a half minutes of arguing with the bouncer, and walked to the corner of Punt Road and Stewart Street, where they met up with the friend who had been too intoxicated to be allowed in.  The four of you then walked into Stewart Place to a carpark about 50 metres north. 

3Walking about 20 metres behind you were a group of five men, including the two victims, Ivo Straulig and Angus Willis.  They were with three other friends.  At the corner of Stewart Street and Stewart Place, one of them, Morgan Curtis, stopped to urinate and the others waited for him.  While they were there, you started shouting words to them from some metres away, to the effect of, "What are you guys saying?" and "You fucking private school boys." 

4You then walked quickly from the carpark up towards Ivo Straulig and I saw CCTV footage and it is to be noted you had to walk almost a length of a laneway to reach him.  You then stopped in front of Straulig and punched him to the face once with your right hand, Mr Straulig stumbling backwards, after being almost knocked to the ground.  He blacked out for a short time and felt pain and swelling to his left cheek. 

5Mr Willis was standing on the footpath, speaking on his mobile phone at this time and you walked up to him and hit him once in the face with your left hand, causing Willis to fall and hit his head on the footpath, causing a laceration to the back of his head which bled and he lost consciousness for about between 30 and 60 seconds.  You then pulled up your jumper hood over your head and walked away.

6Now, Mr Trainor, this was very nearly one of those classic situations which you have no doubt seen on the news time and time again, where there is a one punch.  The victim falls back, hits his head on the pavement and dies, in which case someone like you would be facing a charge of manslaughter, and that would have attracted something in the vicinity of eight to ten years' minimum sentence.  Are you aware of that? 

7OFFENDER:  Yes.

8HER HONOUR:  Bear it in mind.  All right. 

9

Police were alerted and both victims were taken to the Alfred Hospital. 

Mr Willis had stiches to the laceration on his head and was admitted overnight for hospital, as he had neck and spinal pain and had vomiting in the ambulance.  He suffered constant headaches and lack of focus for four to five days after the assault. 

10

Mr Straulig underwent a CT scan, showing a depressed fracture to his left cheekbone and he too was admitted to hospital overnight for observation and given a follow-up review.  Later, investigations found there was a seven millimetre depression of the bone and blood in his sinuses, and that he had numbness around his left upper teeth.  It was determined, fortunately for

Mr Straulig, and very fortunately for you, that no surgery was required and the injury should heal with no cosmetic issues and he was ordered not to blow his nose for six weeks.  Ultimately those injuries have resolved. 

11Interestingly, a report from Victorian Institute of Forensic Medicine, Dr Jo Ann Parkin, noted that it was possible that the fracture might have become permanent and his injury could potentially have resulted in a permanent loss of sensation to the cheek, upper left gums and palate, as well as ongoing infection in the sinuses, causing constant sinusitis pain and infection as a result - consequence of the injury.

12

Now, I spoke to the prosecutor at the time about it not being necessary to include that and it is not, strictly speaking, but there was a potential for

Mr Straulig to have walked away from this with permanent serious ongoing injuries as a result of that one punch. 

13Ultimately police viewed CCTV footage, which was later replicated and shown in court today. 

14You were eventually apprehended by police and then attended for interview.  You refused to look at the photographs police had of the injuries to your victim, basically saying you did not want to, which is some sign of, not just the stupidity of your actions, but your general immaturity overall, that is, it was an attempt to avoid all responsibility for what you had done. 

15Police located a series of text messages between you and friends in the immediate aftermath of the apprehension by police, where essentially you said - you reckoned that you were, "I'm going to gaol.  Fuckin' got done for assault." 

16I now turn to your personal history.  You are now 21 years of age and were 20 at the time of this attack.  You had some prior criminal history, although it is not particularly extensive.  Nevertheless, it is an indication of the worrying role that alcohol has increasingly played in your life, resulting finally in an appearance before the County Court, that is, as a result of you offending so seriously that your matters cannot be dealt with by the Magistrates' Court.  It is not a nice prior to have on your history. 

17You first appeared before the Magistrates' Court on 14 February 2014 for a series of offences, including driving offences, unlawful assault, smoking tobacco in a taxi cab and driving whilst having a blood/alcohol concentration above the legal limit.  That apparently resulted from a couple of incidents, one involving a fight with a taxi driver and the other one involving you being pulled over while you were over .05.  So alcohol was already getting you into trouble.

18You were placed on a community corrections order, which was ultimately breached because of non-compliance of conditions by you, but varied and was successfully completed by you.  I note that that first CCO involved a condition that you attend for treatment, which at that point you clearly were not taking seriously. 

19Then in June of 2014, you were dealt with for recklessly causing injury.  As is often the case with people with prior criminal convictions, this gives further insight into the way your life was heading and the fact that you were not really taking any notice of how much alcohol you were drinking, the damage you were doing, or the trouble you were getting into.  You were charged with recklessly cause injury, essentially as a result of a fight from bouncers who tried to get you out of the pub because you were too drunk.  At this time you were still on the community corrections order.  You were also charged in relation to shoplift, which involved you trying to steal alcohol. 

20Looking back, one would hope it would be obvious to you at that point in time that alcohol was playing a very serious role in your life, in terms of your criminal offending.  Then of course there is this incident, again arising totally out of your excessive consumption of alcohol and you ending up, as I have said, in a very serious legal situation where you are before the County Court. 

21Ordinarily people who go around getting drunk and punching other people, that is young men such as yourself, can confidently expect to be placed in gaol. 

22You were originally charged with two charges of intentionally causing serious injury.  Ultimately after some negotiation by your legal team, you pleaded guilty at an early stage to two charges of intentionally causing injury. 

23I regard the injuries that you did cause to both your victims as being at the upper end of the gravity within the range available under that sort of offending.  Clearly what the damage you did to them has been quite severe.  Each victim spoke in particular of the emotional difficulties they now suffer in the aftermath.  Neither of them had any clue as to why they were punched by you.  They both underwent serious, painful injuries which lasted some time, but which ultimately resolved.  What has really been appalling for each of those victims is that they have been left with a feeling of emotional unsafety.  They do not like going out at night, they are worried about being attacked. 

24One of the victims in particular, Mr Straulig, also suffered serious financial consequences.  He is a student, he is entirely reliant on part-time work, which usually means what you would call "soft target work", late at night, and he was particularly emotionally ill-equipped to continue to work he so relies upon, as a result of your completely unprovoked attack upon him. 

25Mr Straulig said in his victim impact statement, "This assault has severely restricted my social life, compared to before."  He said he used to be confident and outgoing and now he really struggles with people that he does not know.  He is also worried that the general insecurity he feels for his safety and his life now will impact on his capacity to work as a journalist, which is the course he is undertaking at the moment.  He has trouble taking public transport at night and so has to spend money on taxis. 

26Interestingly and concerningly he states, "Whereas before I was outgoing and confident with people, now I have lost my confidence.  I often relive the moment of the assault.  It can happen spontaneously out of nowhere or in the form of nightmares I have, from which I wake up sweating and in distress.  The memory is of the withering pain I felt when the punch connected with my face and how that pain was transmitted through my whole body."  Somebody who is reliving a traumatic incident usually means they have developed an emotional condition called post-traumatic stress disorder, which can go on for years. 

27Both Mr Willis and Mr Straulig spoke about the horrible realisation, which young men are not supposed to have, of how fragile life is, and each of them reflected on the fact that one stupid punch has not only robbed them of the security of their life, but they are concerned about the fact that things could have been a lot more serious and they could have been far more gravely injured. 

28

Let me say, exactly the same thing could happen to you, Mr Trainor.  The courts are sick to death of seeing drunken young men going around

king-hitting people without a thought to any consequence and it causing very serious injury, or in this case, long-lasting and troubling injury, both emotional and physical, that you should be completely ashamed of.  All it takes is one punch from some drunken idiot and you could be in exactly the same situation. 

29Now, I have decided to place you on a community corrections order. Mainly because you are a young man, you are now 21, so you are a - you will have to correct me, Madam Prosecutor, up to the age of 21 he is a - - -

30MS BRUHN:  A young offender.

31HER HONOUR:  Young offender. 

32You are now a youthful offender.  According to the Sentencing Act, if someone is of that particular age, aspect of rehabilitation, that is, the court looking at your prospects of getting your life back on track, are a more important factor in the sentencing exercise before the court than if you were older.  If you had been 26 or 27, I would not have cared about your prospects of rehabilitation.  Indeed the law says that I am to have less regard to them and I would not hesitated to have gaoled you. 

33So you may - if you are under this mistaken impression that you have got away with it this time and you can go ahead and do this again, understand two things.  Every time you appear in front of a court now, (1) you will have a prior for appearing before the County Court.  Any judge or magistrate is going to understand that that is serious offending and I can tell you that my sentencing remarks will be transcribed and will be available to any judge or magistrate in the future, who will be made aware of the fact that I am telling you very clearly now, the only reason you are not going to gaol today is because of your age and because of the efforts that you have made to overcome your drinking, which I will refer to in a moment. 

34Were those two factors not present in your case, I would have gaoled you and I would not have hesitated to gaol you.  But the older you are, the less the court is going to be concerned about rehabilitation for the future.  Courts are always concerned about sending young people to gaol because inevitably when they do, they make a whole lot of dopey mates who they hang onto when they leave gaol and the chances of their re-offending go up, that is, the community is placed at more risk because they have been placed in gaol. 

35Now I am going to turn to your personal circumstances.  You are the second of four children born to your parents.  You completed Year 10 at school.  You went on to complete an apprenticeship and you have been employed on a consistent basis ever since.  You have a very good working history.  I received a very positive report from your employers, who have been made aware of your offending.  Basically what they stated was that you have taken significant steps forward and have become a valued employee who is, "now requested by a site foreman to be sent to their sites".  They say that they see you as having a role in their company's future.  That was a letter written by Gavin White, a director of Precision Fire Protection. 

36You work as a sprinkler fitter and as I have said, you have worked for that employer since leaving school and that is very much to your credit that you have done this. 

37You have had a rather difficult family history.  Your father who is a bricklayer, drinks daily and unfortunately your mother has suffered from alcoholism for some years, and this has caused enormous discord, stress and unhappiness in your home. I understand that on some occasions, when your mother has been under the influence of alcohol, there has been a paranoid reaction involving some physical violence by her and you had to calm her down.  That is a very difficult way for a young man to grow up.

38Additionally, it means that people can either respond to it by saying, "I'm never going to drink because of the unhappiness it causes", or they can become unhappy and turn to alcohol for solace and develop a problem themselves.  And it may well be that you physically have a particular reaction to drinking that you need to look at.  One of the signs of alcoholism is that when you are drunk, you behave in a way that you would not when you were sober. 

39I know that could be said about anyone, but if you turn into a violent person who is going to have a paranoid reaction, as you clearly did on that night, you may have a chemical weakness when it comes to alcohol.  No doubt this is something you have already covered in the work that you have done, in relation to your alcohol problem.  Something you really need to think about.  People who have got a proclivity towards alcoholism, who become violent, who cannot stop drinking once they start, make appalling husbands and fathers.  They end up assaulting their children.  They end up assaulting their partners.  They end up causing enormous misery.  So for you own personal happiness in the future, you need to look very seriously at whether or not you have the potential for alcoholism within you.  It can be an inherited trait.  All right? 

40Fortunately for you, you had the good sense, once you recommenced your community corrections order, to pay particular attention to the rehabilitative condition that ordered that you undertake treatment for alcohol abuse and you began seeing TaskForce, which is an immensely well-established and skilled organisation, well-known to these courts, and you have continued on to this day, which is to your credit, given that this was actually not required of you, as the community corrections order on which you started has in fact lapsed, but you kept going.  And thank goodness you did.  Thank goodness you had the brains and the insight to do this. 

41A report, dated 19 January 2016, by Sarah Dobbie, a forensic drug and alcohol clinician, upon whom you have attended, notes that you have been engaged with TaskForce since March 2014.  She talks about you engaging with her since July 2015 until present, and is currently still engaging in weekly sessions.  She said that you presented as "respectful and appeared genuine in wanting to address his issues.  Mr Trainor demonstrated a high level of motivation in his desire to address his alcohol misuse and focus on making positive changes to his lifestyle." 

42It is noted that throughout this time you have maintained full-time employment; that you play football and cricket; that you have learned distraction strategies such as exercise to stop yourself from turning to alcohol, and the report states, "Over this period of time, Mr Trainor reported that he has restricted his alcohol use to occasions and sporadically throughout the week.  Mr Trainor has clearly identified high-risk situations and triggers and has implemented strategies when these situations present, such as avoiding particular social interactions.  Mr Trainor has continued to report his confidence in managing triggering situations and in his reported ability to avoid alcohol abuse." 

43Again, this is not all over.  You still have work to do.  And you still really need to have a look at whether you should be drinking at all.  All right?  You know, one more occasion of criminal behaviour by you, involving alcohol, as a result of you using alcohol, and you are looking at gaol.  You know, you have been given a series of opportunities and this is the last one you will get.  Do you understand? 

44OFFENDER:  I understand.

45HER HONOUR:  All right. 

46I also received references from family and friends, speaking to your presentation as a respectful, funny and loving, talking about your hardworking nature, reference to the difficulty that you have at home.  There was also a reference from the captain of the Cheltenham Football Club, which was an important reference.  I get a little bit tired of young men being presented to this court as if they are sensational human beings because they play football.  I do not see too many women being brought along and the court being asked to say that because they play netball, they should escape the consequences of their actions, but for some reason it seems to be expected that young men playing football will. 

47I found his reference extremely important, in that he said, "He has always conducted himself in a professional manner and excelled in all requirements of a team sport.  Renny did not receive any suspensions or reprimands during the year in a physical sport", and he found that your behaviour was out of character. 

48Unfortunately in my view, your priors do not show that that behaviour was out of character, it shows that it was pretty much set and that what happened with your - given your alcohol consumption, was bound to happen.  He said that you had exhibited great remorse, you have expressed disappointment in yourself and have volunteered to be an assistant coach, which he is stating, "which is now hanging in the balance of this charge." 

49Finally I received a very impressive reference from a family friend, Ms Batt, who is a principal of St Anthony's Primary School.  She is your aunt and godmother, and she said, "I have spoken to Renny on a number of occasions about what he had done.  He is very remorseful and feels sick that he has caused so much pain and anguish to another person.  He is currently having counselling, which we hope will encourage Renny to drink less when out and not to respond inappropriately with violence", which is a very, very good summary of what you did on that occasion.  She makes this also very insightful comment, and you need to take this with you.  "Unfortunately Renny comes from a home where he has seen drinking and violence go hand in hand."  She believes that this situation has contributed to your offending and your drinking.

50

So, I am going to give you one more chance.  It seems to me that you have made very serious efforts to rehabilitate yourself before coming to court. 

I note that you are in negotiations with both of your victims, who are going to make a s.85(b) application, that is an application for financial compensation, and the fact that you are in negotiations also impresses me, in terms of the remorse you feel for your offending and I note that a plea was made in this matter at a very early stage, and that you should be given a full discount in relation to that. 

51So in all the circumstances that I have outlined, your youth, the mitigating factors, your remorse, your rehabilitative prospects, which as long as you stay off the grog, if I can put it that way, seem to me to be pretty good, your very good work history, I am prepared to place you on a community corrections order, but again, I keep saying it, this will be the last chance.  Let me tell you,  it would not matter, if you do this again, it will not matter if you get the top QC in the land (and your barrister did a very good job for you today), Counsel can only do so much with their clients and no judge or magistrate is going to be prepared to give you any more chances after this.  All right?

52I also need to let you know, you are not going to enjoy this order. There are going to be work hours and I know you work a lot of hours, but you are going to be working more.  You need to make this order a priority.  Many young men leave this court thinking "Yay I got off, I'm not going to gaol and now why is Community Corrections bugging me?".  When they say jump, you jump.  You breach this order - I see you again on a breach, you can expect to go to gaol, all right?  I know I already said that to you, but I am repeating it.  Do not come before me (and you will be coming to see me every six months), do not come before me with an unfavourable report, or with a prospect of a breach hanging over your head because I will deal with you for this offending again and I will gaol you.  Have you got it?  Thank you, stand up sir.

53I can only place you on a community corrections order with your consent.  I need to explain what the conditions of the order are.  The core conditions are:

1.  You must report to the Community Corrections Office within two               working days of the making of this order.  I assume an appointment has              already been made for you?

54OFFENDER:  Yes.

55HER HONOUR:  Good, thank you. 

2.  Whilst you are on the order, you may not commit another offence      punishable by imprisonment either inside or outside of Victoria.  That does      not mean you can commit an offence and have to be gaoled.  That means if    you commit any offence for which you could in theory be gaoled, such as    stealing a bottle of grog from a bottle shop, or knocking off a box of   matches from the supermarket, that will have breached the order.

3.  Whilst you are on the order, you must report to and receive visits from the      Community Corrections Office as directed.  You must notify the Community      Corrections Office of any change of address or employment within 48      hours.  You must not present to the Community Corrections Office under    the influence of any illicit substance or illicit substance.  That is, you better   not turn up drunk.

4.  You must obey all lawful directions of the Community Corrections Office.  I     am going to order the order will last for two years.  I order that you undertake 280 hours of unpaid community work. 

5.  There is going to be a condition of supervision.  You are to attend for      assessment and treatment for alcohol use and there will be judicial    monitoring every six months.  All right?  Are you prepared to enter the order?

56OFFENDER:  Yes.

57HER HONOUR:  Thank you, have a seat.  We will prepare the documentation.  The other thing I would like you to do as well, you can write out a letter of apology to each of your victims.  That is not going to make their lives an enormous - and you give it to the informant not them, to be passed on, all right?  It may at least reassure them to some extent, that an actual human being and not some Martian from out of space as I said attacked them and that you are genuinely for what you did.  It may make their emotional situation a little more easy.  So you are to do that.  We will make that a condition as well, thank you.  Have a seat.  You are to have done that within two weeks I think.

58OFFENDER:  Yep.

59HER HONOUR:  So within two weeks, you are to have delivered a letter of apology to each of the victims, forward it to the informant in this matter, thank you and have a think about it, all right? 

60I should add that it was understandably submitted to me by the prosecution that I should deal with you by way of a sentence of imprisonment to be immediately served. I have found that pursuant to s.5 of the Sentencing Act, I am not satisfied that immediate imprisonment is the only appropriate sentence in this case. The other thing I could have done is I could have given you what might be called a "touch up". I could have given you a month or two in gaol and combined it with a community based Corrections order. Anyway, I have decided not to do that for the reasons that I have said. I do not want you losing your employment. I think it is extremely important that you continue on the path that you have. Both for yourself, but more importantly, for the community. It seems to me they are the greater safeguards to ensure this sort of behaviour doesn't not happen again, thank you. And because I have handed down a community corrections order, I do not have to make a s.6AAA declaration.

61MS BRUHN:  No, Your Honour.  So I take that back, you won't be making one?

62HER HONOUR:  No, I do not have to.

63MS BRUHN: Your Honour, just to clarify, a young offender under the Sentencing Act means an offender who at the time of being sentenced is under the age of 21 years, but obviously under Mills common law, he is a youthful offender to the - - -

64HER HONOUR:  Yes, he is a youthful offender. 

65MS BRUHN:  Yes.  I'm not too sure if I - - -

66HER HONOUR:  No, no, I'm sorry.

67MS BRUHN:  Yes, if I - - -

68HER HONOUR:  Young offender is specifically - - -

69MS BRUHN:  Yes.

70HER HONOUR:  - - - someone who has committed an offence whilst under the age of 21 and is still under the age of 21 at the time of sentencing.  At common law, Mr Trainor is a youthful offender.

71MS BRUHN:  That's correct.  Thank you, Your Honour.

72HER HONOUR:  And application of rehabilitation of principles still apply, but have somewhat (indistinct), but I thank you for that.  I will return the references.  Yes, I am grant a s.464ZF application.  I have decided I am going to do that because of the priors.  I will just hand these back, thank you.

73MS BRUHN:  If I could hand those orders up, Your Honour?

74HER HONOUR:  No, I am just going to order a saliva swab.  Now I have ordered that you have to report to a police station within 28 days of today and let them swab your mouth.

75OFFENDER:  Yes.

76HER HONOUR:  If you do not do this, police may use reasonable force in obtaining that sample, all right?  You go to the Moorabbin Police Station.  Yes, thank you I will get you to sign that.  Thank you, Mr Trainor.  All right, good luck with that Mr Trainor.  Make this your last court appearance.

77OFFENDER:  Thank you, Your Honour.

78HER HONOUR:  Thank you.  I thank counsel for their assistance in this matter.  Yes, thank you.

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